Carrie Anne Roberts, the British designer behind the clothing brand Mère Soeur, woke up one morning earlier this month to a flood of Instagram notifications. Loyal followers had tipped her off to an Old Navy T-shirt they believed was a copy of one of her graphic tees. Old Navy was selling it for half the price of the original.
Roberts is a single mom who sells “mamamerch,” items like T-shirts, totes, and coffee mugs adorned with cheeky mom references. The shirt Old Navy copied featured the words “Raising the Future,” and Roberts created it to go along with a matching kids’ tee with the words “The Future” printed across the chest — Old Navy made knock-offs of the kids’ tee too. The “Raising the Future” shirt is one of Roberts’s best-selling products; she has sold hundreds of shirts to customers, most of whom are based in the US.
Infuriated, Roberts posted the Old Navy dupes to Instagram, lamenting about being copied by a huge brand. She received more than 800 comments of support, many from people who also left angry comments on Old Navy Instagram posts and posted negative reviews of the T-shirts on Old Navy’s website.
After days of being pelted with criticism, Old Navy pulled the shirts from its site, though they’re still available for sale in stores, and responded to Roberts via email. The company pointed out that since Roberts didn’t trademark the phrases “Raising the Future” or “The Future,” and does not have a trademark for the font or graphic design of the shirts, she has zero legal rights to them.
Old Navy’s response to Roberts did mention that no additional orders of the shirt would be placed, which Roberts considered a small victory. She’s still upset, though, that a huge company can profit from the work of an independent designer.
“Big businesses think us small businesses are just here to pull ideas from, and they think we are weak,” Roberts said. “I was a single mom, and the idea behind this T-shirt inspired my whole business. Now it’s been stripped of all meaning, and it feels really violating.”
Roberts won’t be the last designer this happens to. Large brands get away with stealing designs from smaller companies because fashion is not fully protected under American copyright law. A set of rules written four decades ago, US copyright law positions American fashion as a manufacturing industry rather than a creative one. With these laws still in place, fashion isn’t given nearly enough legal protection, even as blatant knockoffs have become increasingly prevalent.
Designer rip-offs happen constantly
Saying that there are hundreds of instances like Mère Soeur’s Old Navy tee would be an understatement. Big fashion brands rip off small ones all the time, the most prolific offenders being fast-fashion companies, whose entire business model revolves around copying trends and bringing them to market quickly. Forever 21 has imitated everything from a phone case made by an LA indie brand to a popular feminist tee to Instagram-famous swimwear to a coat from a CFDA/Vogue Fashion Fund finalist — and these are just examples from 2017.
Zara has a laundry list of its own, ripping off brands high and low. Last year, it copied $795 Balenciaga sneakers as well as Kanye West’s coveted Yeezys, which an eagle-eyed shopper posted to Instagram. In 2016, it was called out for copying pins from illustrator Tuesday Bassen as well as replicating sandals by designer Aurora James of Brother Vellies.
H&M has its own copying controversies, the most recent being putting Gosha Rubchinskiy’s signature gothic font styling on H&M T-shirts, hoodies, and socks. So does Urban Outfitters, including a long legal battle it won against the Navajo Nation, who sued the company for using the Native American tribe’s indigenous patterns on merchandise like underwear and flasks.
While these are all cases of affordable fashion brands doing the copying, this is also a practice in luxury fashion. Take Gucci’s 2018 cruise collection, which included a jacket that was a near-exact replica of one by 1980s Harlem couturier Dapper Dan.
Gucci ripping off Dapper Dan brings the issue full circle because he was famous for using counterfeit Gucci, Fendi, and Louis Vuitton logo prints to make bomber jackets, jumpsuits, and hoodies. He ran his operation for a decade until these brands sued him for copyright infringement in 1992, and his Harlem store went out of business due to litigation fees. (This time around, Gucci ended up settling the dispute by collaborating with Dapper Dan.)
Chanel also had a copying scandal: In 2015, Scottish designer Mati Ventrillon was surprised to see pieces the Chanel design team had bought from her “for research” regurgitated on the Chanel runway. After Ventrillon voiced her displeasure about the situation, Chanel agreed to credit the designer as its inspiration in all communications about the collection.
American law doesn’t prohibit brands from copying each other
Brands are able to keep copying one another because of outdated legal doctrines. Unlike music, drama, literature, and art, fashion is not — and never has been — adequately protected under American copyright law, meaning clothing designs can be duplicated without permission.
When copyright laws were being written in 1976, “we were largely a nation of manufacturers rather than designers,” explained lawyer Doug Hand, who represents companies like Rag & Bone, Phillip Lim, Rodarte, and Cynthia Rowley. He’s referring to a time when there were no huge American fashion houses, though the country was home to a booming garment manufacturing industry that’s since moved overseas.
Europe, on the other hand, was a continent filled with storied fashion houses (Chanel, Balenciaga, Prada, and Gucci were all founded in the early 20th century; Burberry and Lanvin in the 1800s), as well as centuries-old textile companies that produced original designs. As a result, France, Scotland, Italy, and Germany have long had extensive copyright laws that explicitly protect fashion.
America’s place in the fashion industry has changed dramatically in the past 40 years. During the ’80s, Ralph Lauren rose to prominence by taking the preppy aesthetic, once relegated to the American elite, and selling it as an accessible look to the masses. At the same time, Calvin Klein brought sportswear blazers to the forefront and turned the humble blue jean into a coveted designer purchase, while Donna Karan sold chic, high-end women’s clothing that was uniquely functional and comfortable.
These designers achieved international acclaim and became multibillion-dollar brands. Today the tradition continues with American companies like Michael Kors, Kate Spade, Tory Burch, Coach, and Marc Jacobs, which have themselves become global forces with recognizable designs. Still, the laws haven’t been updated.
There are some ways designers can protect their work. Technical components of a design, such as proprietary fabrics like nylon, can be patented. Company names, slogans, and logos can be trademarked, which means they can’t be used by anyone other than the brand that owns the trademark.
Brands can also go the route of a trade dress, a kind of trademark in which a design is deemed so recognizable that the average consumer associates it with the brand; brands can register their designs as a trade dress with the United States Patent and Trademark Office, though this is a difficult and expensive process.
Hermès, for example, has a registered trade dress for the silhouette of its iconic Birkin bag. Trade dress can also be used as a claim in court, regardless of whether it has been officially registered. However, the threshold is high, especially for small and emerging brands that would have a hard time proving people associate items with their lesser-known companies.
Without hyper-specific design details or logos to patent or trademark, more generic fashion pieces — like Carrie Anne Roberts’s T-shirt that Old Navy copied or the Brother Vellies sandal that Zara copied — are left wide open to be duplicated.
Brands with both a potential legal leg to stand on and the means to endure costly legal battles have taken their copycat woes to court. In 2012, Gucci won $4.7 million worth of damages three years after it sued Guess for copying a logo and pattern that it trademarked. The dispute dragged on in courts in France, Italy, China, and Australia until April 2018, when the two brands finally settled for an undisclosed sum.
Other promising cases are still pending. Levi’s recently slapped Kenzo with a lawsuit after the luxury house released jeans with a small rectangular tag hanging off the back pocket — a design element that Levi’s has trademarked (Kenzo’s is white, while Levi’s is red). The footwear startup Allbirds is suing Steve Madden for ripping off Silicon Valley’s favorite sneaker, on the grounds that its signature wool shoe is a trade dress.
But duking it out in court doesn’t always work. Aquazzura, a high-end shoe label, sued Ivanka Trump’s brand and its manufacturer Marc Fisher for copying its Wild Thing sandal, claiming the company has a trade dress on the design. (The first daughter’s brand also has a dupe of Chanel’s two-tone slingbacks on the market, though Chanel has yet to take legal action.) The case is still pending, but Fisher’s CFO says the sandals are “a trending fashion style not subject to intellectual property law protection.” He also pointed out that the Aquazzura sandal is similar to shoes from several other brands.
There have been recent attempts to secure stronger legal protection for fashion. In 2012, the Council of Fashion Designers of America tried to pass the Innovative Design Protection Act, with the backing of Sen. Chuck Schumer, a New York Democrat. Originally known as the Design Piracy Prohibition Act, the bill was first drafted in 2007 with the goal of providing designers a three-year period during which designs could be protected, so long as they went through a rigorous process to prove they were “novel” and had never existed before. The bill was never brought to a vote, and the reform efforts quietly stopped.
“Congress sees the fashion industry as frivolous, an area that doesn’t need protection,” Ariele Elia, a project coordinator at New York’s Fashion Institute of Technology, told Racked in 2014. “They don’t see ramifications, that copying hurts the industry and makes it difficult for designers to emerge.”
The case for and against the copycat economy
Not everyone sees copycats as a problem. Brittany Rawlings, an attorney who specializes in fashion law, told Racked that she believes fast fashion’s contributions to the American economy has made Congress hesitant to protect fashion design. “America’s GDP for fashion is at $350 billion,” she said. “The argument is that if we protect the designs, we’ll stunt that growth.”
Kal Raustiala and Christopher Sprigman, authors of the book The Knockoff Economy: How Imitation Sparks Innovation, have posed a similar theory they call the “piracy paradox,” which argues that copycats actually help the fashion industry innovate.
“It seems like an industry that is doing very well without copyright protection, and in fact, we think it does well because there is no copyright protection,” Raustiala told Racked in 2016. “Copyright has an intent behind it, and the intent is to protect creators so that they continue creating. When we looked at fashion, we saw an industry that was very, very creative and puts out tons of new ideas every season and has done that continuously for decades.”
The authors also argue that if every single dress or shoe design were to suddenly fall under copyright protection, big brands with large legal budgets would copyright as many designs as possible and constantly file lawsuits, creating a hostile environment that could force smaller designers out of the industry completely.
“Right now the industry is competitive and healthy, and there are lots of young people coming into it,” said Sprigman. “Some of them succeed; some of them fail. But it’s an industry that you can enter. It’s not dominated by a few large companies. Everyone would be accusing everyone else of copyright infringement. You’re going to get an environment where larger companies start to dominate because they can afford great lawyers. The upstarts can’t.”
But those who see a case against knockoffs argue that the playing field is already uneven, with independent artists today spending money they can’t afford to spare on legal fees. Even when designers don’t have legal claims to their knocked off items, they hire lawyers to send cease-and-desist letters in hopes that companies will take them seriously and stop selling the pieces. Tuesday Bassen spent $2,000 for a lawyer to contact Zara about its copycat pins, only for Zara to dismiss the claim.
“They have so much more money, and they know that pursuing these lawsuits is very costly and a lot of artists can’t afford to go through with them,” one lawyer who specializes in copyright law told Broadly. “I think these companies think the artists will either cave in and not do anything, or settle for a really low amount.”
Others contend that knockoffs are bad for the industry on whole, not just small designers. Jerry Lorenzo of the streetwear brand Fear of God told GQ he believes copycats cheapen design as a craft and condition shoppers to undervalue the creative process.
“It took us a lot of time and work to nail those proportions and details, and they’re stealing our designs and passing them off as their own,” he said. “No one knows that their track pants aren’t Fear of God, and so when they see it they might think, ‘That’s a $900 track pant?’ because their quality sucks, and that’s damaging to what we’re doing.”
In some cases, knocking off an independent designer can actually kill said designer’s career. Edgardo Osorio, the founder of Aquazzura, noted, “As a young designer, you become well-known for a silhouette, [and they] are the way the designer makes money, because they don’t go on sale. When they start copying my classic styles, it’s a problem.”
How social media hurts — and helps
Once a design hits social media, the fast-fashion machine can’t be stopped. It’s only a matter of time before there are multiple brands making copies, with the original creator almost always getting lost in the shuffle.
In a pre-digital world, runway and indie designs were certainly knocked off, albeit much less often and at a much slower pace; you had to see an original piece in the limited space of a magazine or out in the physical world for the copycat process to commence. Fast-fashion brands now consider Instagram one of their best and easiest idea generation tools, and the speed of manufacturing is unprecedented.
The fast-fashion brand Boohoo can manufacture a product in as little as two weeks. Its competitor, ASOS, boasts similar manufacturing speeds and each week adds 4,000 new styles to its site. Both brands openly admit that Instagram trend scouting fuels their ever-growing business.
But social media has also been a saving grace in this battle. Designers have been able to raise their voices on the platform to garner attention, often invoking the David-and-Goliath analogy to gather a gaggle of supporters.
In the case of Roberts and Old Navy, it seems unlikely that the Gap-owned giant would have stopped making the copycat T-shirts if so many vocal fans hadn’t taken action on social media. Would Dapper Dan have earned the patronage of Gucci if the online mob hadn’t noticed that the luxury brand copied his designs? Almost certainly not.
Social media has become a powerful tool that’s helped movements create global waves of change, from Black Lives Matter to #MeToo. Empowering people with what can coalesce into a collective voice also forces giant companies to listen to the masses. A brand can’t simply ignore thousands of angry comments if it wants to protect its public image — or its sales.
Small designers can’t expect copying to stop, nor can they rely on American law to change. They can, however, count on the internet outrage cycle, the speed of which, fittingly, mirrors that of the fast-fashion industry.